SARDAR MUHAMMAD SHAMIM KHAN, J.---The appellant Allah Ditta son of Muhammad Ramzan was tried in case F.I.R. No.211 of 2004 dated 7-9-2004, for the offences under section 302, of PPC, Police Station Karampur, Tehsil Mailsi, District Vehari. Mr. Parvez Ismail Joyia, learned Addl. Sessions Judge, Mailsi, Vehari, vide his judgment dated 25-11-2004 convicted the appellant under section 302(b) of PPC and sentenced him to Death.
2. Criminal Appeal No.596 of 2006 filed by Allah Ditta, appellant against his conviction and sentence, while Murder Reference No.733 of 2004 for confirmation of death sentence of Allah Ditta, shall be decided through this single judgment.
3. Brief facts of the case are that the occurrence took place on 7-9-2004 at about 7-30 p.m. The complainant, who was the wife of the deceased, a house-hold lady, got registered this case against her own son with the allegation that on 7-9-2004 at 5-30 p.m., Muhammad Ramzan, husband of the complainant (deceased) was present in the CHHAPAR of his house. Allah Ditta accused son of the complainant armed with Kassi was quarrelling with his father Muhammad Ramzan. In the meanwhile, he started inflicting injuries on the person of his father with Kassi which hit him on his different parts of body, who fell in the pit of making pots. On the hue and cry raised by the complainant, P. Ws. Mentioned in the F.I.R., also attracted at the spot and saw the occurrence. They tried to catch hold the accused but he made his escape good from the place of occurrence. Muhammad Ramzan, deceased succumbed to the injuries at the spot.
4. The motive behind the occurrence as alleged by the complainant is that Allah Ditta accused was a narcotic addict and demanded money from his father but he forbade the accused. Allah Ditta accused often quarrelled with his father. 15/20 days prior to this occurrence, Allah Ditta accused had also launched an attack upon his father. Complainant saved her husband with difficulty. Allah Ditta accused had committed Qatl-e-amd of her husband Muhammad Razman.
5. After completion of investigation, challan was prepared and submitted before the learned trial court for trial. Charge against the accused was framed on 18-11-2004 to which, he pleaded not guilty and claimed to be tried.
6. Afterwards on 25-11-2004, when the case was fixed for prosecution evidence, Allah Ditta, appellant showed his willingness to get recorded his confessional statement. The confessional statement was recorded by the learned trial court, after granting opportunity and time to the appellant to think over it. And after granting this opportunity, when the court satisfied himself that the appellant was making confessional statement with his free will and consent, the confessional statement of the appellant was recorded and on the basis of his confessional statement, the appellant was convicted under section 302(b) of P.P.C. And sentenced to Death.
7. The appellant through the instant appeal (through jail) has challenged the validity of the impugned judgment.
8. Learned counsel appearing on behalf of the appellant submits that the conviction recorded by the learned trial Court, against the appellant solely on the basis of confessional statement of the appellant is bad in the eye of law as not even a single prosecution witness was examined; that it was incumbent upon the learned trial Court to record the prosecution evidence even if there was a confession made by the appellant as the prosecution was required to prove its case against the appellant beyond any shadow of doubt irrespective of the confession of the appellant. Learned counsel submits that this case should be remanded back to the learned trial Court for recording of prosecution evidence from the stage of confessional statement of the appellant. In support of the above contentions, learned counsel has placed reliance on Loung v. The State (1976 PCr.LJ 204), Tariq Mehmood v. The State (2000 PCr.LJ 837) and Atif Abidullah v. The State (2010 M LD 599).
9. On the other hand learned Law Officer has frankly conceded to the version put forth on behalf of the appellant and stated that case should be remanded back to the learned trial Court for recording the prosecution evidence and to decide the case in the light of evidence.
10. We have heard learned counsel for the parties, have given anxious consideration to their arguments and have also gone through the precedent case-law cited by learned counsel for the appellant.
11. We have noted that in this case the appellant was convicted and sentenced solely on the basis of his confession which was recorded by the learned trial Court on 25-11-2004. Perusal of record reveals that charge against the appellant was framed on 18-11-2004 and appellant did not plead guilty to the charge and claimed his trial. Thereafter the learned trial court summoned the prosecution evidence for 25-11-2004. On 25-11-2004 the case was fixed for prosecution evidence but instead of recording the prosecution evidence the learned trial court recorded the confessional statement of the appellant.
12. Perusal of section 265-F of Cr.P.C. Reveals that if accused does not plead guilty, the court shall proceed to hear the complainant (if any) and to take such evidence as may be produced in support of prosecution. Learned trial Court after framing of charge, instead of recording the prosecution evidence as required by section 265-F of Cr.P.C., recorded the confessional statement of the appellant.
13. On 25-11-2004, the learned trial court put certain questions to the appellant in order to assess that if the confessional statement of the appellant was voluntary and after satisfying itself that the confessional statement of the appellant was voluntary, his confessional statement was recorded.
The perused of confessional statement of the appellant reveals that the appellant committed the murder of Muhammad Ramzan, his father as his father used to practice incantation upon him and due to that reason he committed the murder of his father out of Ghairat.
14. In such situation, it was incumbent upon the learned trial Court to record the prosecution evidence and defence evidence, if any, as the appellant took specific plea for committing murder of the deceased in this case and then to decide the case on merits but learned trial Court acted in undue haste and proceeded to record the judgment awarding death penalty in a careless manner.
In a case of Loung v. The State (1976 PCr.LJ 204), relevant observations of the Court are as under:- "There is consensus. Of judicial authorities that in spite of the fact that there is no bar to the acceptance of the plea of guilt but in cases involving capital punishment or life term the conviction should not normally be based on the plea of guilt. The practice has been that plea of guilt is not usually accepted. It is desirable for the trial Court to record the evidence itself and judge the case in the light of the evidence so recorded instead of relying on the plea of guilt or on the evidence recorded by the Enquiry Court. In this view I am supported by a judgment of a Division Bench of this Court in "Akbar v. The State" (Criminal Jail Appeal No. l34 of 1974). Incidentally, I was a Member of the Bench which decided this case. It has been held in this case that although there is no bar to accept the plea of guilt but as the consensus of the judicial authorities is that the plea of guilt should not normally be accepted and the capital cases should be tried despite plea of guilt. It has also been held in this case that the plea of guilt should always be recorded in the words of the accused persons himself and that it was not sufficient to say in the charge that the accused had pleaded guilty."
And in case law "Tariq Mehmood v. The State" reported in 2000 PCr.LJ 837, the relevant observation of the Court is re-produced hereunder:- .................. S. 302(a)---Criminal Procedure Code (V of 1898), S.265-E---Conviction recorded on theplea of accused---Accused has been convicted under section 302(a), P.P.C. And sentenced to death as Qisas by the trial Court on his having pleaded guilty to the charge framed against him--- Accused according to record, no doubt, had made a voluntary confession, but it was yet to be seen if the same was true or not---Trial Court in order to satisfy itself about such nature of the confession had referred to medical report and the evidence collected by the Investigating Officer available on record, but said evidence having not been recorded in the Court could not be considered as a legal evidence against the accused---After recording evidence and taking into consideration the necessary aspects of the case Trial Court might have not awarded the impugned punishment to the accused---Conviction and sentence of accused were consequently set aside and the case was remanded to the Trial Court for de novo trial by recording evidence and fresh decision in accordance with law.
15. In the afore referred circumstances we are in agreement with the argument of the learned counsel for the appellant that it was the duty of the learned trial Court to record the prosecution evidence in spite of the fact that the appellant made confessional statement. It is evident from the impugned judgment that the appellant was convicted and sentenced to Death on the basis of his confessional statement which he made before the learned trial Court as stated above, for committing the murder of the deceased. However, without commenting on the evidentiary value of confession as the capital punishment was likely to be awarded to the appellant solely for the reason that the appellant has admitted his guilt, therefore, learned trial Court should have recorded the prosecution evidence but it failed, therefore, keeping in view the mandate of subsection (b) of the section 376, of Cr.P.C., the impugned judgment is termed as no judgment in the eye of law which is set aside and the case is remanded back to the learned District and Sessions Judge, Vehari with the direction either to try this case himself or entrust it to some learned Additional Sessions Judge for its trial from the stage of plea of confessional statement of the appellant on the same charge which was framed against the appellant. It has also been noticed that the case pertains to the year 2004, therefore, in the interest of justice the learned trial Court is directed to complete the trial of this case within a period of three months, positively, from the date or receipt or this judgment. It is further observed that during pendency of the trial, the appellant shall remain in the jail as an under trial prisoner. The Additional Registrar (Judicial) of this court is directed to immediately send back the record of this case to the learned District and Sessions Judge, Vehari, for compliance.
16. Murder Reference is answered in Negative and sentence of death is not confirmed.